Working in a hostile work environment is an uncomfortable experience. Hostile work environment sexual harassment only makes it worse. Day in and day out you are forced to go back to the same place that is making you feel uncomfortable. Maybe your boss is making uncomfortable sexual comments about you. Maybe one of your coworkers frequently leaves pornographic magazines around the office. Or maybe someone is inappropriately touching you or one of your coworkers.
You should feel comfortable at your own place of work, and not worry every day about what inappropriate situation you may find yourself in that day. The dedicated employment law attorneys at The Law Firm of Fenters Ward are committed to helping people like you report hostile work environment sexual harassment and get you the recovery that you deserve.
What is Hostile Work Environment Sexual Harassment?
Hostile work environment sexual harassment occurs when an employee is subjected to unwelcome sexual advances, innuendos, or offensive gender-related language while at work. This conduct must be sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.
What Do You Have to Establish?
To succeed on a claim of hostile work environment sexual harassment, the victim must show that:
- He or she was subject to unwelcome sexual harassment;
- The harassment was based on the victim’s gender;
- The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment; and
- The relationship between the employer and the harasser is sufficient enough to confer liability on the employer for his or her actions.
Based on Gender Does Not Necessarily Mean Sexual in Nature
On of the essential factors required to establish sexual harassment of a hostile nature is that the victim was treated differently than other employees because of his or her sex. However, hostile work environment sexual harassment does not have to be based on sexual language or conduct.
What is necessary is that the hostile work environment is because of the victim’s gender. For example, if a woman is treated poorly at work because her boss dislikes women, if this creates a hostile work environment for the woman, she has an actionable claim.
Severe and Pervasive Standard
Another necessary element for a successful hostile work environment sexual harassment claim is that the harassment is “sufficiently severe and pervasive.” But what does this mean?
While courts have not yet established a definitive rule for what conduct can be considered sufficiently severe and pervasive, courts have generally ruled that the conduct must be seriously offensive or egregious conduct.
Courts have also held that if the conduct in question is abusive or threatening in nature, it is sufficient to satisfy this standard. But as is the case with all of these factors, this is determined on a case-by-case basis.
Reasonable Person Standard
The reasonable person standard is a fairly subjective standard. Generally, courts have defined it as whether a reasonable person of the same gender as the victim would find the conduct offensive. This is also determined on a case-by-case basis.
What Is NOT a Hostile Work Environment?
Courts determine what constitutes a hostile work environment based on sexual harassment on a case-by-case basis. To make this determination, courts look at the totality of the circumstances.
One of the things that courts consider in determining whether a work environment is hostile in nature is the setting and atmosphere in which harassing conduct takes place. For example, in a physical therapist’s office, stretching out the hamstrings of an individual by touching their upper thigh would not be inappropriate. However, a similar action over a period of time in an office environment could be considered hostile work environment sexual harassment.
In this case-by-case analysis courts give special attention to the following factors:
- The frequency of the conduct;
- The severity of the conduct;
- Whether the conduct interferes with the victim’s work performance; and
- Whether the conduct is threatening or humiliating in nature rather than “merely an offensive utterance.”
However, it is important to keep in mind that because every case is different, courts look at the full context surrounding the events in question.
Is a Single Instance Enough?
Yes! A single instance of sexual harassment can be enough to constitute hostile work environment sexual harassment under the law. This occurs when the conduct in question is extremely severe in nature.
Generally, for a single instance of sexual harassment to constitute a hostile work environment, it must consist of inappropriate touching or behavior that is threatening in nature. Examples of this include sexual touching and sexual assault.
Is it Still Sexual Harassment if the Actions Are Not Directed Toward Me?
Yes! It is possible for an employee to bring a claim for hostile work environment sexual harassment if the action in question affected the complaining employee’s work environment.
Examples of this include when an employee witnesses harassing conduct and the conduct was severe or pervasive enough that a reasonable person with the same fundamental characteristics (i.e. gender, race, etc.) as the victim would be offended. This includes indirect victims, or persons who were in the vicinity of the harassment when it occurred and were offended by the conduct.
To prove this, the person alleging harassment must show that he or she witnessed the harassment directly and that the harassment took place in his or her immediate workplace environment.
What about Workplace Favoritism?
In certain situations, favoritism in the workplace may be unlawful hostile work environment sexual harassment. This occurs when a supervisor shows favoritism toward employees with whom she or he has a sexual or romantic relationship.
For a claim of workplace favoritism to be actionable as unlawful hostile work environment sexual harassment, there must be an established pattern of such favoritism. A single instance of favoritism based on a sexual or romantic relationship is not enough to bring a successful claim.
Can it be Sexual Harassment if the Harasser is the Same Sex as Me?
Yes! As long as all of the elements of a successful claim of hostile work environment sexual harassment are established, you can bring a claim of sex discrimination.
In these situations, it is not necessary that the harasser be homosexual to be an offender. Rather, the necessary element is that the victim was treated differently due to his or her gender and suffered harassment as a result of this.
Further, if conduct attacks the sexual identity of the victim, this also constitutes hostile work environment sexual harassment. What is essential to the courts in these instances is how the conduct was perceived by the recipient.
We are here for you!
If any of the situations described seem similar to your workplace environment, you do have legal options. Reach out to The Law Firm of Fenters Ward today for a free consultation, by either filling out this contact form or calling 877-259-WARD.
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